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The Case for the Attorney-Client Privilege

Posted by Barbara J. Zabawa | Jul 05, 2016 | 0 Comments

The attorney-client privilege is a rule of evidence that prohibits the lawyer from disclosing information relayed by clients.  The privilege belongs to the client, and the client can choose to waive it.  However, the attorney-client privilege can mean so much more, even to those who are not clients of the lawyer.  Some may argue that there is no need for the attorney-client privilege in our open society that shares everything and an increased willingness to bargain away the privilege during negotiations.  Moreover, there are many different players in the health and wellness compliance field who do not practice law or are not trained as lawyers.

Based on my experience, I disagree that the attorney-client privilege is an antiquated concept.  In my experience, the attorney-client privilege is more than just a discovery tool for litigation.  It is symbolic of the legal profession in its purest form.  The attorney-client privilege reaches beyond client confidences and instills a sense of trust even among those who are not our clients.  As an example, I recently had lunch with a colleague who said he shared information that he would not share with a nonlawyer.  Even though that information is not subject to any kind of privilege, the fact that it exists for me in other contexts provided a veil of trust in our relationship.

So, regardless of whether individuals or organizations are more willing to bargain away their privileged communications, the attorney-client privilege still serves a valuable purpose.  It provides clients and others within our communication circles with an air of confidence and trust in what we as lawyers say and do.  Earning and keeping that trust and confidence with others is priceless.    

About the Author

Barbara J. Zabawa

Attorney Barbara J. Zabawa started the Center for Health & Wellness Law, LLC after she recognized a need for legal services that shared a mission with providers to improve patient outcomes and population health, encourage wellness, protect patient interests in choice of provider and treatment options, provide holistic care, and expand information access. Attorney Zabawa has 20+ years of experience in the health care field, first receiving her Master's in Public Health from the University of Michigan before attending law school at UW Madison, where she graduated with honors in 2001. From 2003-2005, Ms. Zabawa clerked for the Honorable Barbara B. Crabb in the United States District Court for the Western District of Wisconsin and worked on a variety of matters, including employment, patent infringement, civil rights, and contract matters. She also served as a Skadden Fellow representing health care consumers on both the national and local level by helping consumers navigate private insurance coverage issues and advocating for their interests as a Funded Consumer Advocate at the National Association of Insurance Commissioners (NAIC). Attorney Zabawa has worked for a large health insurance company providing advice on the Affordable Care Act as well as HIPAA Privacy and Security compliance. In addition, she was in private practice at a large regional law firm for seven years, where she was a shareholder, led her firm's health care team and served as its HIPAA Privacy Officer. While in private practice, she handled a variety of health law matters, such as compliance with fraud and abuse laws, professional scope of practice matters, state licensing issues, HIPAA privacy and security compliance, Medicare and Medicaid reimbursement and conditions of participation compliance, Accountable Care Organization and other joint venture agreements, employment agreements, as well as business litigation. Attorney Zabawa is the author of the forthcoming book "Rule the Rules of Workplace Wellness Programs." She is a frequent speaker and writer both nationally and regionally on workplace wellness program compliance, the Affordable Care Act, fraud and abuse issues and HIPAA compliance. She has published several law review articles in the practice of health law and has been interviewed by TV, radio and print media regarding wellness, health reform, and HIPAA. She is a Board Member for Rogers Memorial Hospital Foundation, Board President for the Wisconsin Alliance for Women's Health, Board Member for Health Promotion Advocates, and currently serves on the Oversight Advisory Council for the Wisconsin Partnership Program and the State Bar Health Law Section Board. Education JD - University of Wisconsin Law School, cum laudeMPH - University of Michigan School of Public HealthBA - Lawrence University Admitted to Practice: • New York• Wisconsin• Federal District Court of the Western District of Wisconsin• Federal District Court of the Eastern District of Wisconsin• Court of Appeals for the Seventh Circuit• United States Supreme Court

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